May 12, 2011

I read the news of John Demjanjuk’s conviction in the New York Times here. The most important thing about his conviction is summed up in this statement:

In the absence of specific evidence against him, the case against Mr. Demjanjuk rested on the prosecution’s charge that anyone working at the camp at the time he was there shared responsibility for its function of systematic murder.

In other words, the legal basis for charging Demjanjuk with a crime was the ex-post-facto law that was dreamed up by Lt. Col. Murray C. Bernays specifically for the Nuremberg IMT, although it was also used by the American Military Tribunal at Dachau. This is the first time that this legal basis has been used in German courts, thus setting a precedent that can be used in future trials.

Bernays was a Lithuanian Jew who had emigrated with his family to America in 1900 when he was six years old. Robert E. Conot wrote, in his book “Justice at Nuremberg,” that Henry Morgenthau, Jr., a Jew who was the Secretary of the Treasury and one of President Franklin Roosevelt’s top advisors, had proposed that the German war criminals should be charged and then executed without a trial. But Bernays said, “Not to try these beasts would be to miss the educational and therapeutic opportunity of our generation. They must be tried not alone for their specific aims, but for the bestiality from which these crimes sprang.”

Now 66 years after the end of World War II, Demjanjuk has been tried and convicted on the theory that he is guilty because he was allegedly THERE. It doesn’t matter if he actually did anything wrong, he is guilty by association. (more…)